In re C.G.-1

Supreme Court of West Virginia

March 12, 2018

In re C.G.-1 and C.G.-2

Hampshire
County 17-JA-8 and 9

MEMORANDUM DECISION

Petitioner
Mother D.G., by counsel Jeremy B. Cooper, appeals the Circuit
Court of Hampshire County's September 21, 2017, order
terminating her parental rights to C.G.-1 and
C.G.-2.[1] The West Virginia Department of Health and
Human Resources ("DHHR"), by counsel Lee Niezgoda,
filed a response in support of the circuit court's order.
The guardian ad litem ("guardian"), Marla Zelene
Harman, filed a response on behalf of the children in support
of the circuit court's order. On appeal, petitioner
argues that the circuit court erred in denying her motion for
an improvement period and in terminating her parental rights.

This
Court has considered the parties' briefs and the record
on appeal. The facts and legal arguments are adequately
presented, and the decisional process would not be
significantly aided by oral argument. Upon consideration of
the standard of review, the briefs, and the record presented,
the Court finds no substantial question of law and no
prejudicial error. For these reasons, a memorandum decision
affirming the circuit court's order is appropriate under
Rule 21 of the Rules of Appellate Procedure.

In
February of 2017, the DHHR filed a petition alleging that
both children suffered unexplained injuries while in the care
of petitioner and her boyfriend, D.K. C.G.-1 suffered severe
bruising to his genitals and C.G.-2 suffered unexplained
burns on her wrist and leg, as well as bruising to her ear
and jawline. Several hours passed after the discovery of
C.G.-1's severe bruising before he was taken to a
hospital. While being examined, C.G.-1 stated that
"[D.K.] hit me." Petitioner could not explain the
injuries but asserted that C.G.-1 would sleep walk and must
have suffered the injuries in his sleep. Additionally, the
DHHR alleged a previous incident in November of 2016, when
the babysitter brought C.G.-2 to the hospital after noticing
she was favoring one leg. Hospital staff concluded that
C.G.-2 had suffered a spiral fracture to her leg, but did not
conclude that the injury was the result of abuse or neglect.
Petitioner could also not explain this earlier injury.
Petitioner waived her preliminary hearing on February 9,
2017.

The
circuit court held an adjudicatory hearing, and the medical
personnel who conducted the examinations testified that the
trauma sustained by C.G.-1 was likely non-accidental.
Additionally, the results from forensic interviews were
admitted in which L.K, D.K's three-year-old son, accused
D.K. of hitting C.G.-1. L.K stated that D.K. hit C.G.-1,
threw C.G.-1 against the wall, and "bumped
[C.G.-1]'s head on the floor." Petitioner testified
and admitted that she failed to supervise her children, but
did not have an explanation as to how the children suffered
their injuries. Petitioner noticed C.G.-1's genitals were
bruised upon changing C.G.-1's diaper in the morning but
did not notice any bruising before putting C.G.-1 to bed the
night before. Petitioner admitted that she, D.K., and the
children were the only people in the home on the night the
injury occurred, but she did not suspect D.K. was the
perpetrator of the abuse. Petitioner consistently stated that
she did not see D.K. abuse her son. Petitioner also testified
that she did not hear C.G.-1 cry out or scream on the night
the injuries occurred. However, medical personnel testified
that the child would have likely made significant noise based
on the severity of the bruising. With regard to C.G.-2,
medical personnel testified that the spiral fracture could
have been accidental trauma, but petitioner offered no
explanation as to a reasonable cause. Further,
petitioner's explanation for C.G.-2's burns was
deemed incredible by medical personnel, and, therefore, the
burns were also deemed likely non-accidental. Ultimately, the
circuit court adjudicated petitioner and found that neither
she nor D.K. offered any reasonable explanation for the
children's significant injuries. It also found that
petitioner and D.K. were the only adults in the home when the
children sustained those injuries. Petitioner moved for a
post-adjudicatory improvement period, and the circuit court
deferred ruling on that motion.

In May
of 2017, the circuit court held a dispositional hearing,
during which the DHHR moved for the termination of
petitioner's parental rights. The circuit court ordered a
parental fitness and psychological examination for petitioner
and continued the dispositional hearing. The circuit court
also deferred ruling on petitioner's motion for an
improvement period.

At the
continued dispositional hearing, the circuit court reviewed
the psychologist's evaluation and found petitioner still
did not accept responsibility for her children's
injuries. Notably, when speaking with the psychologist,
petitioner characterized the injuries as
"unexplained." Ultimately, the circuit court denied
petitioner's motion for a post-adjudicatory improvement
period and continued the dispositional hearing. Further, the
circuit court ordered that the psychologist prepare a
supplemental evaluation prior to the next dispositional
hearing and be given further information regarding the
court's previous findings of abuse and neglect and the
medical records of the children.

In
August of 2017, the circuit court held a final dispositional
hearing and the petitioner moved for a post-dispositional
improvement period. The psychologist testified that she met
with petitioner a second time in preparation for the
supplemental evaluation and that petitioner appeared to have
had an "epiphany" with regard to her children's
injuries. Petitioner now believed it was "likely"
that D.K. injured her children, but that the babysitter also
could have perpetrated the abuse. The psychologist testified
that she believed petitioner could be successful in an
improvement period and that her youth and inexperience
contributed to her lack of insight. However, the psychologist
was unaware of previous court findings, such as C.G.-1's
likely pain-induced outburst upon receiving the bruising, a
delay in treatment for C.G.-1, and petitioner's continued
involvement with D.K. When confrontation with those findings,
the psychologist indicated that those factors concerned her.
Additionally, the grandfather testified that he had seen
petitioner and D.K. together at least twice since the
adjudicatory hearing. Petitioner refused to testify, even
after the circuit court explained that a negative inference
could be drawn from her refusal to testify. The circuit court
also took note of two supervised visitations in which C.G.-1
referenced D.K. and stated "[D.K.] can't hit
me" and then acted out and became aggressive.

Thereafter,
the circuit court found that petitioner's "failure
or refusal to testify during the disposition hearing can
certainly be determined as affirmative evidence of
culpability" and that petitioner's "silence
further deprives this [c]ourt of what is necessary" to
clearly and convincing prove that petitioner was willing and
able to participate and follow-through with an improvement
period. Further, the circuit court found that
petitioner's "epiphany" was incredible because
"she reiterated that the abuser could be the babysitter;
the evidence presented clearly does not support such a
position or reality." The circuit found the conditions
and circumstances causing the injuries to the children were
rendered uncorrectable without an acknowledgment of the real
problems and issues. The circuit court also found that there
was no reasonable likelihood the conditions of abuse and
neglect could be substantially corrected in the near future
and that the children's safety could not be ensured in
their mother's custody. Ultimately, the circuit court
denied petitioner's motion for a post-dispositional
improvement period, terminated her parental rights, and
granted post-termination visitation in its September 21,
2017, order.[2] Petitioner appeals that order.

The
Court has previously established the following standard of
review:

"Although conclusions of law reached by a circuit court
are subject to de novo review, when an action, such
as an abuse and neglect case, is tried upon the facts without
a jury, the circuit court shall make a determination based
upon the evidence and shall make findings of fact and
conclusions of law as to whether such child is abused or
neglected. These findings shall not be set aside by a
reviewing court unless clearly erroneous. A finding is
clearly erroneous when, although there is evidence to support
the finding, the reviewing court on the entire evidence is
left with the definite and firm conviction that a mistake has
been committed. However, a reviewing court may not overturn a
finding simply because it would have decided the case
differently, and it must affirm a finding if the circuit
court's account of the evidence is plausible in light of
the record viewed in its entirety." Syl. Pt. 1, In
Interest of Tiffany Marie S., 196 W.Va. 223, 470 S.E.2d
177 (1996).

On
appeal, petitioner argues that the circuit court erred in
terminating her parental rights without first granting her an
improvement period. Petitioner argues that the evidence shows
she made progress and gained insight throughout the
proceedings, and that she could be successful if granted an
improvement period. We disagree.

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;The
decision to grant or deny an improvement period rests in the
sound discretion of the circuit court. See In re:
M.M., 236 W.Va. 108, 115, 778 S.E.2d 338, 345 (2015)
("West Virginia law allows the circuit court discretion
in deciding whether to grant a parent an improvement
period"); Syl. Pt. 6, in part, In re Katie S.,
198 W.Va. 79, 479 S.E.2d 589 (1996) ("It is within the
court&#39;s discretion to grant an improvement period within
the applicable statutory requirements"). We have also
held that a parent&#39;s "entitlement to an improvement
period is conditioned upon the ability of the [parent] to
demonstrate &#39;by clear and convincing evidence, that the
[parent] is likely to fully participate in the improvement
period. . . .&#39;" In re: Charity H., 215
W.Va. 208, 215, 599 S.E.2d ...

Our website includes the first part of the main text of the court's opinion.
To read the entire case, you must purchase the decision for download. With purchase,
you also receive any available docket numbers, case citations or footnotes, dissents
and concurrences that accompany the decision.
Docket numbers and/or citations allow you to research a case further or to use a case in a
legal proceeding. Footnotes (if any) include details of the court's decision. If the document contains a simple affirmation or denial without discussion,
there may not be additional text.

Buy This Entire Record For
$7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.